Tafadzwa Charumbira v The State

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HMT 60-20
B 137/120
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TAFADZWA CHARUMBIRA

versus

THE STATE

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 3 and 10 September 2020

Bail Application

T Zenda, for the applicant

M Musarurwa, for the state

MWAYERA J: The applicant approached this court seeking to be admitted to bail pending trial. The state opposed the application. The background of the matter is that the applicant is facing allegations of Rape as defined in s 65 (1) of the Criminal Law (Codification and Reform) Act. Firstly in that between 1 and 6 March 2020 near Ndyarima Primary School, Buhera the accused unlawfully and knowingly had sexual intercourse with Mary Nance Madzirerutsa a female juvenile aged 10 years, who at law is incapable of consenting to sexual intercourse. Secondly in that on 7 March 2020, and at Ndyarima Primary School grounds, Buhera the accused unlawfully and knowingly had sexual intercourse with Mary Nance Madzirerutsa a female juvenile aged 10 years who at law is incapable of consenting to sexual intercourse.

The state opposed the application citing that there are compelling grounds why the applicant should be denied bail pending trial. The state feared both direct and indirect interference considering the complainant is only 10 years old and that accused was once a domestic worker at complainant’s place.  The state argued that the applicant is facing serious allegations and that the state case is strong. The state entertained fears that considering the circumstances that is the nature of allegations and seriousness the accused was likely to abscond.

In applications of this nature what falls for consideration is the interest of administration of justice which leans on societal desire to have matters prosecuted to their logical conclusion. The interest of justice have to be weighed against the individual right to liberty which is premised on the presumption of innocence till proven guilty. Bail pending trial is indeed a constitutional right availed in s 50 (1) (d) of the Constitution which states that:

“A person who has been arrested must be released unconditionally or on reasonable conditions pending a charge or trial unless there are compelling reasons justifying their continued detention.”

In the present case the applicant is indeed facing serious allegations. He has proffered the defence of alibi and sought to remove himself from the scene of crime. Considering the circumstances of the matter the explanation proffered by the accused and that the complainant’s hymen remained intact per the medical report the presumption of innocence operates in favour of the applicant. The allegations of rape are serious but it has been stated countless times by this court that the seriousness on its own is not sufficient ground to deny the applicant bail. See S v Hussey 1991 (2) ZLR 187, Kanoda and Others v S HH 200-90.

In fact it is settled that factors for consideration in deciding whether or not to admit an applicant to bail must of necessity be cumulatively considered and not taken in isolation. Considering that the applicant still has the presumption of innocence operating in his favour, that he is a Zimbabwean of fixed abode and that he has not shown propensity to abscond or interfere with the complainant and other witnesses, it would not be proper to deny the applicant bail. The fear of applicant interfering with witnesses and complainant can be cured by imposition of appropriate conditions. Further fears of abscondment may be allayed by reporting conditions. In this case it has not been shown that after the allegation arose the applicant fled or attempted to flee.

In the present application it appears the interests of administration of justice can be safeguarded by appropriate bail conditions while at the same time according the applicant his right to liberty. There are no compelling reasons why applicant should not be admitted to bail.

Accordingly it is ordered that applicant be and is hereby admitted to bail on the following conditions:

That he deposits $1 000-00 with the clerk of court Rusape Magistrates Court.

That he resides at Ringarira Village, Chief Nyashanu, Buhera until the matter is finalised.

That he attends Bangure Secondary School in the event that schools open before finalisation of this matter.

That he reports at Murambinda Police Station every Friday between 6:00 am and 6:00 pm.

That he does not interfere with the complainant and state witnesses directly or indirectly.

Hungwe and Partners, applicant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners